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RIGHTS-NEPAL: Truth, Reconciliation in Limbo

Mallika Aryal

KATHMANDU, Sep 4 2008 (IPS) - When Nepal's Supreme Court directed the government in June 2007 to form a commission to investigate cases of forced disappearances, during the 1996-2006 civil war, it extended hope to many survivors. More than a year later the idea of a truth and reconciliation commission (TRC) is still in limbo.

Journalist Bhaikaji Ghimire was tortured in custody by the Nepal army during the war. Credit: Mallika Aryal/IPS

Journalist Bhaikaji Ghimire was tortured in custody by the Nepal army during the war. Credit: Mallika Aryal/IPS

For Pushpa Kamal Dahal, Nepal's new prime minister, a major concern is integration of his Maoist fighters with the Nepal Army that he fought bitterly for ten years. Dahal's Communist Party of Nepal (Maoist) emerged victorious in the constituent assembly elections held in April.

So far the bill to create the TRC, introduced immediately after the Supreme Court ruling, appears to have stalled through poor coordination between the home and peace ministries, preoccupation with the April elections and lack of sufficient political initiative.

"It is the sheer lack of political will," said Jitendra Bohara of the Nepali human rights group, Advocacy Forum.

The bill for the formation of a Truth and Reconciliation Commission (TRC), drafted by the Peace Ministry, has undergone a fourth revision because of a controversy over a clause concerning amnesty for perpetrators of war crimes.

"You can't establish a truth commission in a hurry," warn rights experts. They say that the environment is still not safe for a TRC to begin work. However, other activists say that time is quickly running out and that if nothing is done valuable evidence will be lost. With the Maoists getting a majority in the election and now leading the new government, victims and their families are also afraid the TRC may never be formed.

Ramesh Shrestha, a former Maoist, lost his right arm in a grenade attack in Kathmandu in 2000 and was in and out of military custody for 17 months during the war. He is not hopeful for the families of the disappeared. "In the Nepal Army as well as the PLA (People's Liberation Army), those responsible for war crimes during the war are all high-level officers," says Shrestha. ''If a disappearance commission is formed they will all be exposed, the Maoists will never let that happen."

Bhaikaji Ghimire, managing editor of the monthly Sama Drishti, was secretly held for 15 months and moved between the Bhairabnath, Shivapuri and Nakkhu Prisons in Kathmandu from 2003-2005. He says that it is the responsibility of the state and the Maoists to make public all who were disappeared, killed and tortured during the war and get the perpetrators to ask for forgiveness in public.

Ghimire adds: ''No one has the right to forgive the perpetrators but the victims." He was convicted under an anti-terror law, tortured, made to sleep on the bare floor and put through regular death threats and mock executions. He was freed in August 2005 when Nepal's Supreme Court ruled that his detention was illegal and ordered an immediate release.

Although the Maoists are now hesitant about the TRC, they did support the idea of a disappearances commission before the election. "Perhaps the Maoist leaders now feel there is a lot of evidence against them, which is why they want to push this issue under the rug," says Bohara. The Maoists have told the families of those disappeared by the state that all such victims will be declared martyrs, and that they should keep quiet for now.

Meanwhile, rights groups are disturbed by a memo from the United States-based law firm of Holland and Knight (H&K) that proposes a blanket amnesty for perpetrators of human rights violations. The memo states that Nepal does not have a 'clear, binding, general duty' under international customary law or Nepali law to prosecute rights violations. It says there is no 'firm support' for claims that Nepal must prosecute violations of human rights and humanitarian law. The memo adds that amnesty is common in times of political transition, especially when truth commissions are set up.

Advocate Mandira Sharma says the memo has many flaws. "Impunity has been the biggest challenge in Nepal, reports like the one H&K prepared can only strengthen this culture," she says.

But Hannes Siebert, a South African consultant with the USAID-funded Nepal's Transition to Peace Initiative, says the memo does not state, recommend or imply that international law permits blanket amnesties for serious crimes.

"That is a terrible misreading, or non-reading, of the report," adds Siebert, who is also chairman of the Appeal Foundation of the Nobel Peace Laureates, for whom the memo was written pro bono by H&K. The group aims to enable Nepali stakeholders to develop common ground within their often opposed positions and provide support to the Peace Secretariat and political parties.

About the controversy over amnesty provisions in the Truth and Reconciliation Commission bill, Siebert says this should be an internal Nepali debate and "not the place of international advisers to take positions or prescribe''.

Joint secretary at the peace ministry, Madhu Regmi, says that the H&K memo was an independent study and its recommendations are not binding. "We did not ask H&K to write a report in our favour, we are not obligated in any way to implement their suggestions. Since the TRC is a living document we have left it open for experts to comment and H&K's memo is just that," he said.

Devi Sunuwar, mother of Maina Sunuwar, who was tortured and killed in 2004 while in Nepal Army custody, at 15 years of age, is outraged at all the talk of amnesty.

"The report says not all crimes committed during the war are eligible for prosecution, they need to clarify what kinds of crimes get amnesty," Sunuwar told IPS. "They killed my little daughter, forgiveness is out of question. If they killed once, they will kill again."

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